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(Oct 25, 2012) On October 18, 2012, the Kenyan Court of Appeal ruled that Kenyan courts have jurisdiction over cases involving persons suspected of international piracy. The ruling overturns a 2010 decision that had determined Kenya lacks such jurisdiction. (Rebecca DiLeonardo, Kenya Appeals Court Allows Jurisdiction over International Piracy Cases, PAPER CHASE NEWSBURST (Oct. 18, 2012).)

The decision is significant in light of Kenya's geopolitical importance in the outbreak of international piracy. Kenya neighbors Somalia, whose unstable political situation has given rise in the recent past to a high proportion of pirate attacks in the Indian Ocean and the Gulf of Aden, although the number of those attacks has declined in 2012. While Kenya has directly benefited to some extent from an influx of pirate money in e.g., the property market, the indirect costs to its shipping industry, tourism, consumer price levels, and foreign investment "far outweigh those incurred directly by piracy in the way of ransoms," according to one researcher. (Lisa Otto, Kenya and the Pest of Piracy, Institute for Security Studies website (Feb. 22, 2012); IMB Reports Drop in Somali Piracy, But Warns Against Complacency, ICC COMMERCIAL CRIME SERVICES (Oct. 22, 2012); Kenya, United Nations website (last visited Oct. 25, 2012).)

The 2012 Decision and the 2010 High Court Ruling

The five-judge appellate court held that in the prior decision, the High Court of Mombasa had "made a mistake in holding that our courts lack the power to try piracy cases. Piracy has negative effects on the country's economy and any state, even if not directly affected by piracy must try and punish the offenders." (Paul Ogemba, Somali Pirates to Be Tried in Kenya: Appeal Court, AFRICA REVIEW (Oct. 18, 2012).) In the High Court ruling, Justice M. K. Ibrahim, on the grounds that Kenya's courts lacked jurisdiction to handle criminal cases involving alleged offenses that occurred outside Kenyan territory (including its territorial waters), had ended the prosecution of nine suspected Somali pirates and ordered that the suspects be repatriated. (Id.; Hanibal Goitom, Kenya: Court Rules Kenya Lacks Jurisdiction over Offenses Committed on High Seas, GLOBAL LEGAL MONITOR (Nov. 12, 2010); Wendy Zeldin, Kenya: Alleged Somali Pirates Acquitted for Lack of Evidence, GLOBAL LEGAL MONITOR (Nov. 12, 2010).)

The Crime of Piracy Under Kenyan Law

The High Court decision had cited the repeal in 2009 of section 69 of the Penal Code, on the offense of piracy, as the basis of its determination of Kenyan courts' lack of jurisdiction to try such offenses that occur outside Kenyan territory. (Goitom, supra, citing to Penal Code, 12 LAWS OF KENYA Cap 63, § 69, KENYAN LAW REPORTS (KLR) [type in "Penal Code" or scroll down in window to "Penal Act"] (last visited Oct. 23, 2012).)

Since September 1, 2009, however, the offense of piracy has been covered under the Merchant Shipping Act (Act No. 4 of 2009, LAWS OF KENYA, Cap 4 [type in "Merchant Shipping Act" or scroll down window to the Act]). Section 396(1) of the Act broadly defines piracy as:

a) any act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed –

(i) against another ship or aircraft, or against persons or property on board such ship or aircraft; or

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any voluntary act of participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; or

(c) any act of inciting or of intentionally facilitating an act described in paragraph (a) or (b); … . (Id.)

This definition mirrors that found in article 101, under Part VII, High Seas, of the United Nations Convention on the Law of the Sea (UNCLOS) (Dec. 10, 1982) (Oceans and Law of the Sea website). Kenya ratified the Convention on March 2, 1989. (Chronological Lists of Ratifications/Accessions/Successions, Oceans and Law of the Sea website (last updated May 23, 2012) [click on link on the right-hand side of the screen].)

In regard to the punishment for the offense of piracy, the Kenyan Merchant Shipping Act stipulates: "[a]ny person who – (a) commits any act of piracy; (b) in territorial waters, commits any act of armed robbery against ships shall be liable, upon conviction, to imprisonment for life." (Merchant Shipping Act,§ 371.)

The 2012 Decision and Kenyan Courts' Jurisdiction over International Offenses

Judge David Maraga, speaking for the Court of Appeals bench, determined that Judge Ibrahim had not had the authority to order the suspects' repatriation or to request the United Nations High Commissioner for Refugees to take custody of them as displaced persons. Maraga therefore ordered that the suspects be transferred to Mombasa to resume their prosecution. The appellate court judges held that any state, based on international law, has the authority to try suspects for crimes of any nature, and Kenya had that mandate as a state signatory to international treaties. (Ogemba, supra.)

Maraga also declared, "[e]very state has interest of bringing to justice perpetrators of International Crimes including piracy, genocide, apartheid and human trafficking. It was therefore wrong for the judge to hold otherwise since the penal code gives Kenyan courts jurisdiction to try any case." (Id.)

The Penal Code states, "[t]he jurisdiction of the courts of Kenya for the purposes of this Code extends to every place within Kenya, including territorial waters." (Penal Code, supra,§ 5.) The courts also have jurisdiction whether a criminal act is done completely within their jurisdiction or partly within and partly beyond it, if the act, when committed completely within their jurisdiction, would be a Penal Code offense. (Id.§ 6, supra.)

It may also be noted that the Merchant Shipping Act stipulates, "[f]or the purpose of conferring jurisdiction, any offence under this Act shall be deemed to have been committed in any place in Kenya where the offender may be for the time being." (Merchant Shipping Act, § 429(1).) Such jurisdiction, moreover, is "in addition to, and not in derogation of, any jurisdiction or power of the court under any other law." (Id.§ 429(3).)

Author: Wendy Zeldin More by this author
Topic: Piracy More on this topic
Jurisdiction: Kenya More about this jurisdiction

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Last updated: 10/25/2012